In defending his refusal to appeal a judge's order overturning California's ban on same-sex marriage, Attorney General Jerry Brown said the sponsors of the ballot measure can appeal it themselves - a statement that might aid their efforts to preserve the ban in court.

Brown, the Democratic candidate for governor, made the comment in Tuesday's debate after Republican Meg Whitman criticized his non-defense of Proposition 8, the November 2008 initiative defining marriage as the union of a man and a woman.

"You can't have a governor or attorney general who makes a decision on what part of the (California) Constitution they're going to defend," Whitman said, referring to the decisions by both Brown and Gov. Arnold Schwarzenegger to stay on the sidelines during the Prop. 8 trial.

Brown replied that he also had a duty to defend the U.S. Constitution and had concluded Prop. 8 violates the federal guarantee of equal protection.

Chief U.S. District Judge Vaughn Walker reached the same conclusion in August, saying Prop. 8 discriminates on the basis of gender and sexual orientation and violates gays' and lesbians' right to choose a spouse.

What Brown said

"I'm not going to appeal it because it can be appealed by the parties," Brown said in the debate.

But whether Prop. 8's sponsors, a conservative religious coalition called Protect Marriage, can appeal Walker's ruling is a potentially decisive issue in the case.

Walker allowed Protect Marriage to defend Prop. 8 at the trial but voiced doubts about the group's right to appeal. He cited a 1997 U.S. Supreme Court decision in which the justices voiced "grave doubts" about whether the unelected backers of a ballot measure have legal standing - the right to represent the state's interests - when state officials accept a lower-court ruling against the measure.

Court's query

The Ninth U.S. Circuit Court of Appeals in San Francisco is scheduled to hear arguments in December and has asked Protect Marriage to explain why it is entitled to appeal. The court could uphold Walker's ruling without further review if it concludes that the group lacks standing.

Protect Marriage, which has argued that initiative sponsors have a special status as representatives of the public under California law, said Wednesday that Brown's comment proves its point.

"Brown's statement can only be understood as conceding that we have standing to appeal," said Charles Cooper, the group's lead attorney. "Now we can focus on the real issue about the rights of the voters to pass Prop. 8."

Deciphering Brown

Sterling Clifford, a spokesman for Brown's campaign, said at first Wednesday that Brown "is of the opinion that (Protect Marriage) will ultimately be able to defend" Prop. 8.

He referred further questions to the attorney general's office, where spokeswoman Christine Gasparac said the office has not taken a position on the right of Prop. 8's sponsors to appeal Walker's ruling and does not intend to do so.

Brown's comment Tuesday was only an observation that Protect Marriage has filed an appeal and that the court will decide its fate, Gasparac said.

Clifford then said that he had misconstrued Brown's position and that legal interpretations were up to the attorney general's office.

Out-of-court statements by parties to a case have sometimes provided ammunition to their opponents, most recently in the suit challenging a law that bars open gays and lesbians from serving in the armed forces.

A federal judge said last month that President Obama's statements that the "don't ask, don't tell" policy is discriminatory and hurts national security were admissions that his administration had no grounds to defend the law. On Tuesday, the judge halted all military discharges based on sexual orientation.

The lawyer for San Francisco, which has joined same-sex couples and a gay-rights group in challenging Prop. 8, said she was not worried by Brown's comments.

"I don't put a lot of stock in what a candidate is saying in a debate," said Therese Stewart, the chief deputy city attorney. "If he doesn't file a brief, it doesn't amount to a hill of beans."